The personal blog of Peter Lee a.k.a. "China Hand"... Life is a comedy to those who think, a tragedy to those who feel, and an open book to those who read. You are welcome to contact China Matters at the address chinamatters --a-- prlee.org or follow me on twitter @chinahand.

Saturday, May 31, 2014

A Quiet Revolution in the South China Sea

Is the PRC Ditching the Nine Dash Line?

Without any ambiguity, the People’s Republic of China has
announced that it considers itself and not the United States the boss in the
South China Sea.Its most assertive
statement of this principle was to send the HYSY 981 rig, escorted by a
flotilla of dozens of ships, into waters that Vietnam claims as its Exclusive
Economic Zone for some exploratory drilling, right after president Obama made a
trip to Asia (but, tellingly and perhaps unwisely, not to the PRC) to talk up
the US pivot.

In keeping with the PRC pattern of avoiding overtly military
operations—those that would justify the invocation of existing or new U.S.
security alliances with PRC neighbors—the flotilla apparently included no PLAN
vessels, and the objectives and disputes surrounding the rig have been
characterized in economic/bilateral terms.

In its attempts to present itself as a responsible and
competent steward of the South China Sea—and in order to bring Vietnam to heel
and isolate the Philippines for the next, much more complex and risky round of “salami
slicing”--the PRC might be prepared to make a major shift in its South China
Sea maritime claims.

Alert readers (admittedly, China Matters has no other kind)
will immediately grasp the significance of this passage from the May 31 People’s Daily:

The truth is,
so far China and Vietnam have not
reached consensus on delimiting their exclusive
economic zones and continental shelves, but
the waters in which the oil rig
is operated are only 17 nautical miles
(31.5 kilometers) from Zhongjian Island of China’s
Xisha Islands while about 150 nautical miles
from Vietnam’s coast. In other words,
the drilling site is located only five
nautical miles from the outer limit of
China’s territorial sea and is undeniably
within China’s exclusive economic zone,
regardless of whichever principle is applied
in future delimitation.

The People’s Republic of China is claiming the right for its
HYSY 981 drilling rig to operate at its current location based upon an EEZ
justification, not by its position within the notorious “cow tongue”, the area
enclosed by the “nine-dash-line”.

Over the last year there have been several informal
indications that the PRC is planning to move beyond the anachronistic “nine-dash-line”
as the basis for its South China Sea claims, and haggle with its neighbors on
the basis of the UN Convention on the Law of the Sea, with its maritime claims
based on sovereignty, territorial waters, and Exclusive Economic Zones or EEZs.

That is big news for the South China Sea and, perhaps, bad
news for the United States, which has relied on the patent absurdity of the
nine-dash-line claim to justify its role as the sensible adult in the SCS.

For clarification, the general principle is that a coastal
state like Vietnam is accorded an EEZ of at least 200 nautical miles or even
more if the continental shelf justifies—provided there is no conflict with the
EEZ of an island held by another state.

In the case of a conflicting island claim, the coastal claim
does not gain automatic precedence; nor is there a standard formula for drawing
an EEZ boundary between the two claims.For instance, there is no principle that the boundary be drawn at the
midline between the coastal baseline and the island baseline.UNCLOS calls for the boundary to be drawn on
the basis of “equity”, taking factors like the populations of the immediate EEZ
claimants into account.

Vietnam would clearly get the lion’s share of EEZ in the
direction of the Paracels, but its position that its continental shelf claim
entitles it to the spot where the HYSY 981 is drilling—and any complicating
claims to a Paracels EEZ can be ignored-- is less defensible.

The PRC position (reflected in the reference to “regardless
of whichever principle is applied in further delineation”) is that the Paracels
is going to get something, at least something more than five miles beyond
Zhongjian Island’s territorial waters, and the HYSY 981 is covered.

Since we’re talking about the South China Sea, the situation
is even more complicated.

In 1996, the PRC drew a single baseline around all the
Paracels, essentially treating them as a single archipelagic group; Zhongjian
Island, a.k.a. Triton Island is the basis for the southwestern corner of the
claim.The Chinese position is that the
archipelagic grouping as a whole (or, per the PRC formulation, “territorial sea”)
is, leaving aside for a moment the issue of conflict with a neighboring EEZ, entitled to a 200 nautical mile EEZ beyond the baseline, hence the invocation of the rig’s
propinquity to Zhongjian Island as defense of its legality.

This is not kosher by UNCLOS standards; only essentially
archipelagic states (like Philippines but not continental states like the PRC
and Vietnam) are supposed to enjoy this treatment.Furthermore, the above-water real estate
inside the claim is miniscule, and doesn’t even come close to the UNCLOS
standard that the ratio of watery realm to land features should not exceed 9:1.Therefore, if the archipelagic claim is
thrown out, the best the PRC could do would be to claim a 12 nautical mile territorial
waters around Zhongjian/Triton Island itself.Since the island is uninhabited and incapable of sustaining economic
life, it gets no EEZ and apparently leaves the HYSY 981 hanging.

However, to further muddy the waters, several coastal states
have ignored these restrictions on archipelagic claims when defining baselines
for island groups (for instance, Denmark on the Faroes and Ecuador on the
Galapagos).

And, in bad news for Vietnam, the PRC has been able to
create a simulacrum of human habitation and economic life on Woody Island in
the Paracels.Woody Island is the designated
seat of the Sansha Prefecture of Hainan Province, with a small town maintained
by a monthly supply boat, an airstrip, and the prospect of patriotic tourism, thereby
creating a plausible claim for itself to a 200 nautical mile EEZ …which would
also cover the current position of HYSY 981, 103 nautical miles away.

Previously, Vietnamese representatives, perhaps unwisely
assuming that the PRC would never abandon the nine-dash-line, had publicly
acknowledged there is a case for allowing Woody Island an EEZ.

Therefore, Vietnam appears to be in something of a bind here.

According to an authoritative looking if officially unofficial paper from August 2013 by Hong Thao Nguyen of the Law Faculty of
Vietnam National University, Vietnam’s position on the Paracels is based on
three principles: sovereignty over the Paracels, rejection of the
nine-dash-line, and the assertion that the issue should be addressed
multi-laterally instead of bilaterally.

As yet, the world largely follows the U.S. lead and does not
take positions on island sovereignty, so point 1 is out.If the PRC is switching to an EEZ basis for
its claims, then point 2 is out.And if
points 1 and 2 are out, there is no strong basis for taking a bilateral spat to
a multilateral forum.

And on technical ground, if the PRC shifts the terms of
debate for HYSY 981 away from the nine-dash-line to UNCLOS and EEZ, Vietnam’s
claims to the spot the rig now occupies do not appear to be a slam dunk.

Adoption of an EEZ dispute formulation would also appear to create
a major political problem for Vietnam.

For Vietnam to negotiate an EEZ settlement with the PRC would
involve Vietnam acknowledging PRC sovereignty over the Paracels and China’s as
yet undefined yet genuine rights to some EEZ treatment.

This, I imagine, is an impossibly bitter pill for the Vietnamese
government to swallow at the present time, given the intensity of anti-Chinese
anger that roils Vietnam.

And if Vietnam can’t accept PRC sovereignty over the
Paracels, the dispute can’t go to UNCLOS arbitration, it’s a sovereignty
dispute, and all those carefully parsed arguments about EEZs and penetrating legal
critiques of the nine-dash-line are completely irrelevant.

If this is the case, the PRC has rather carefully and maliciously
hoisted Vietnam on a cleft stick.

Indeed, beyond asserting the right to drill holes in Vietnam’s
continental shelf, Vietnamese acknowledgement of PRC sovereignty over the
Paracels may be the key concession that China is trying to extract from its
unhappy neighbor.

And maybe that’s the deal the PRC is offering Vietnam and,
by extension, ASEAN: an agreement to play by UNCLOS rules if its sovereignty
claims in the SCS are accepted.

Beyond categorical declarations of its absolute superiority
of its continental shelf claims, Vietnam appears to be trying to find a way out
of its dilemma through the politics of outrage: using heated rhetoric and provocative
approaches to the PRC flotilla by various vessels in the hope that the PRC will
do something so stupid and outrageous that the arcane and fraught issue of
conflicting EEZ and sovereignty claims will be superseded by the
easier-to-understand and cathartic issue of battling Chinese aggression.

For Americans, this situation would conjure up ironic
memories of another provocation in Vietnamese waters, the 1964 Gulf of Tonkin
incident that the U.S. hyped as an excuse to sidetrack informed debate and escalate
its intervention in the Vietnam War.

Remarkably, even though the global China-bashing machine is
on hair trigger, there seems to be little appetite as yet for indulging
Vietnam.Even when a Vietnamese fishing
boat flipped and sank in a dustup with the HYSY 981 flotilla—an incident that
would have supplied ample grist for the anti-China media mill regardless of the
inevitably disputed facts of the encounter-- the international response was
remarkably muted.

Whether this is owing to recognition of the fundamental
ambiguity of the PRC-Vietnam dispute, the fact that ASEAN is thoroughly divided
and cowed by the PRC, or because the US is distracted by its Ukraine adventure
and is not ready to get a China crisis on at this particular moment remains to
be seen.

Judging by President Obama’s security agenda speech at West
Point (where he briefly cited the South China Sea issue but coupled it with a
call for the Senate to ratify UNCLOS in order to give the US more standing in
the disputes), America is not drawing any red lines in the South China Sea just
yet.

As Secretary of Defense Hagel was communicating US resolve
at the Shangri La forum, the New York Times treated the world to an astounding
backgrounder on the Obama administration’s attitude toward Asia.

But even as Mr. Hagel and the United States have
adopted a public posture that backs Japan — and, to a lesser extent, the
Philippines, Vietnam and any other country that finds itself at odds with China
— some administration officials have privately expressed frustration that the
countries are all engaged in a game of chicken that could lead to war.

“None of those
countries are helping matters,” a senior administration official said…

Even if President Obama is suffering from lame duck
fatigue and is disgusted with the hand that Hillary Clinton and her pivot dealt
him in Asia, it seems counterintuitive that the United States will give a green
light to the PRC in its South China Sea dispute with Vietnam.

If the U.S. isn’t ready to throw its weight around on
behalf of its buddies, right, wrong, or nuance be damned, then the value of the
U.S. deterrent and the pivot are significantly devalued.

Furthermore, Secretary of State John Kerry is the
godfather of U.S.-Vietnamese rapprochement and I find it difficult to believe
he—or his ally on the matter, John McCain--will let Vietnam take a whipping
from China without some kind of riposte.

The hope that the US cavalry will ride to the rescue,
despite its current ambivalence, is probably one of the factors that is keeping
Vietnam from sitting down with the PRC for the bilateral talks that Beijing is
insisting upon.

But for the time being, the PRC seems to be cautiously
enhancing its legal position—and relying on the expectation that the world will
get tired of Vietnamese intransigence before it becomes sufficiently outraged
by Chinese assertiveness—to gain further acceptance of its interests and rights
in the South China Sea.

4 comments:

Wow. What an article. Really enjoy myself reading it. Still, there are more things that I am wondering, and I want to ask you:1) If China ditch 9DL, how about Spratly, because if they insist on EEZ justification, they will certainly lose out to Vietnam or even Philippines because the other two are currently possessing many more islands (with people and economy, not just reefs with a few guards). 2) What do you anticipate to be China's next move? Will they bring the oil rig to Spratlys? Or create ADIZ in SCS? Fishing ban in all of SCS, not just 2/3 of it? Or something else? From what I see China don't make the same move twice in a row.

Pankaj International is committed developing, manufacturing, delivering and servicing quality products. Our goal is to continuously improve our products and services in order to satisfy the needs of our customers before, during and after sales. In each of our products category our quality is amongst the best. We use the best quality of raw materials that are and subjected to stringent standards as per required specification.